Citation Nr: 1029188
Decision Date: 08/04/10 Archive Date: 08/16/10
DOCKET NO. 08-00 333A ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in New York, New York
THE ISSUE
Entitlement to an initial rating in excess of 10 percent for
residuals of a right elbow fracture.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Rebecca Feinberg, Counsel
INTRODUCTION
The Veteran served on active duty from November 1948 to March
1954.
This appeal to the Board of Veterans' Appeals (Board) arose from
a September 2006 rating decision in which the RO granted service
connection for residuals of a right elbow fracture and assigned
an initial rating of 10 percent. In November 2006, the Veteran
filed a notice of disagreement (NOD) with the assigned disability
rating. A statement of the case (SOC) was issued in November
2007, and the Veteran filed a substantive appeal (via a VA
Form 9, Appeal to the Board of Veterans' Appeals) in January
2008.
Because the appeal involves disagreement with the initial rating
assigned following the grant of service connection for residuals
of a right elbow fracture, the Board has characterized this
matter in light of the distinction noted in Fenderson v. West,
12 Vet. App. 119, 126 (1999) (distinguishing initial rating
claims from claims for increased ratings for already service-
connected disability).
In July 2010, a Deputy Vice Chairman of the Board granted the
motion of the Veteran's representative to advance this appeal on
the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West
2002) and 38 C.F.R. § 20.900(c) (2009).
For the reason expressed below, the matter on appeal is being
remanded to the RO, via the Appeals Management Center (AMC) in
Washington, DC. VA will notify the Veteran when further action,
on his part, is required.
REMAND
On his January 2008 VA Form 9, the Veteran checked a box
indicating his desire for a Board hearing at his local VA office.
In a June 2010 written statement, the Veteran's representative
reiterated the Veteran's request for an in-person Board hearing
at the RO (Travel Board hearing). However, the record reveals
that the Veteran has not yet been afforded the requested hearing.
As the RO schedules Travel Board hearings, a remand of this
matter for the RO to schedule the requested Travel Board hearing
is warranted.
Accordingly, this matter is hereby REMANDED to the RO for the
following action:
The RO should schedule the Veteran for a
Travel Board hearing at the earliest
available opportunity. The RO should notify
the appellant and his representative of the
date and time of the hearing, in accordance
with 38 C.F.R. § 20.704(b) (2009). After the
hearing, the claims file should be returned
to the Board in accordance with current
appellate procedures.
The purpose of this REMAND is to afford due process and to
accomplish additional development and adjudication, and it is not
the Board's intent to imply whether the benefits requested should
be granted or denied. The Veteran need take no action until
otherwise notified, but he may furnish additional evidence and/or
argument during the appropriate time frame. See Kutscherousky v.
West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104,
108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v.
Derwinski, 3 Vet. App. 129, 141 (1992). The RO is reminded
that this appeal has been advanced on the Board's docket.
_________________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b)
(2009).